CHOTHY THEYYATHAN Vs. JOHN THOMAS

JUDGEMENT

(1.) The decree holder challenges the order of the Executing Court refusing to execute the decree for injunction obtained by him against judgment debtors 1 and 2, against their assignees, impleaded as judgment debtors 3 to 5. The decree restrained judgment debtors 1 and 2 from blasting rock from the B Schedule property described in the decree. Judgment debtors 3 and 4 are assignees of the decree B schedule property. They violated the decree for injunction and the decree holder sought to proceed against them under O.21 R.32 of the Code of Civil Procedure. The transferees resisted execution by contending that though they are assignees of the property covered by the decree, they cannot be proceeded against in execution under O.21 R.32 of the Code of Civil Procedure, since a decree for injunction is personal and affects only the original judgment debtor and S.52 of the Transfer of Property Act has no application since there is no decree against any property and an injunction does not run with the land. Their objection was upheld by the Executing Court and relief refused against the additional judgment debtors. This refusal is questioned by the decree holder.

(2.) Though generally a decree for prohibitory injunction restrains a person from doing something and in that sense it could be said to be personal, it cannot always be considered to operate merely against a person. In a case where the decree restrains a judgment debtor from doing something in his own land to the detriment of the decree holder or in derogation of a right claimed by the judgment debtor to enjoy his own property as an owner, the decree could not be understood as merely personal and not binding on the representative or assignee of the judgment debtor in relation to the property in respect of which it is obtained. In this case the decree is one restraining the owner of the B Schedule property from blasting rocks in that property on a finding that such blasting would injuriously affect the adjacent owner of the A schedule property, the decree holder. When once a decree is passed, it is obvious that the defendant in the suit, judgment debtor would be precluded from carrying on blasting operations in his property. To say that when he succeed by others, they would not be bound by the restraint relating to the enjoyment of the particular property is to derogate from the principle of public policy that there shall be no second litigation in respect of the same right and the same property. To uphold a contention that the assignee from the judgment debtor can with impunity go about blasting rocks from the decree B schedule property against the terms of the decree would, in my view, jettisan the very concept of finality of litigations, the concept of the merger of the cause of action in the decree and the principle of lis pendence, all principles of public policy. It cannot be the policy of law that every time an assignment of the decree schedule property takes place, the decree holder should institute a fresh suit against the assignee so as to prevent him from disobeying the decree obtained by the decree holder against the original owner of the property. In any event, unless compelled, the court should not accede to such a contention and I see nothing which compels the court to come to the conclusion that the decree for injunction in the present case cannot be enforced against the assignees of the B schedule property. Call it the principle of lispendence or call it by any other name, the policy of our law is that normally an assignee or a legal representative is bound by the decree obtained against the assignor or the predecessor-in-interest. This is the policy underlying our procedure and it is recognised by S.146, O.21 R.16 and the Explanation to that Rule, S.11 and S.50 of the Code of Civil Procedure and S.52 of the Transfer of Property Act. The view of the executing court that the principle of S.52 of the Transfer of Property Act cannot apply since no right to immovable property directly and specifically questioned in the suit cannot be accepted in the broad manner in which it is put. Even if an injunction cannot be considered to be a covenant running with the land, it could still be held on the scheme of the Code of Civil Procedure and the principle of S.52 of the Transfer of Property Act that such a decree for injunction could be enforced against the legal representatives or assignees of the judgment debtor as provided in O.21 R.32 of the Code of Civil Procedure.

(3.) In my view, S.146 of the Code of Civil Procedure clearly meets the situation. S.146 provides that proceedings that may be taken against any person, could be taken against any person claiming under him. It has been held that an assignee of the property from the decree holder could execute the decree without reference to O.21 R.16 of the Code of Civil Procedure by invoking S.146 of the Code. It has also been held by this court in Kathiyammakutty Umma v. Jhalakkadath Kallil Karappan (AIR 1989 Kerala 133) that a decree for injunction restraining the defendant from obstructing the plaintiff in erecting a fence on the boundary of his property could be executed against the legal representatives of the original judgment debtor, even in a case where the decree is one for injunction. The Supreme Court, in the decision in Zila Singh v. Hazari ( AIR 1979 SC 1066 ) has held that even in the case of a pre emption decree, the decree could be executed by an assignee of the property in view of S.146 of the Code of Civil Procedure. The Supreme Court referred to the decision in Jugalkishore Saraf v. Rao Cotton Co. Ltd. ( 1955 (1) SCR 1369 ) which was a case of assignment of a debt where in it was held that the assignee of the debt could execute the decree obtained by the assignor of the debt by invoking S.146 of the Code of Civil Procedure. The Supreme Court also referred to the decision in Saila Bata Dassi v. Nirmala Sundari Dassi ( 1958 SCR 1287 ) wherein it was held that S.146 of the Code was introduced for the first time in the Code with the object of facilitating the exercise of rights by persons in whom the rights came to be vested by devolution or assignment and being a beneficent provision, should be construed liberally so as to advance justice and not in a restricted or technical sense. The Supreme Court finally held that a decree for pre emption could be enforced by the assignee of the property by recourse to S.146 of the Code of Civil Procedure.